142 Wis. 668 | Wis. | 1910
Tbe following opinion was filed March 15, 1910:
The principal point made on the appeal, is that the rule permitting respondent to testify to the verbal agreement, contradicting the writing which purported to fix the rights of the parties regarding appellant’s compensation, was erroneous since, by a familiar principle, a written contract cannot be varied or contradicted by evidence of verbal communications prior to the making thereof or contemporaneous therewith.
The rule invoked by counsel, like most judicial rules, is subject to exceptions. One is this: Where there is a distinct oral agreement which, under ordinary circumstances, cannot be efficiently established in the face of a written one covering the subject, or which is inconsistent therewith, for the purpose of giving effect to the former notwithstanding the latter, it may be, in an action between the parties, as a matter of defense to a claim under the writing, in case of the adverse party seeking to use such writing for a dishonest purpose. Corbett v. Joannes, 125 Wis. 370, 388, 104 N. W. 69; Juilliard v. Chaffee, 92 N. Y. 529. That is a very valuable principle in the administration of justice, yet its use is so fraught with danger of rendering written agreements- less certain of fixing the rights of parties than in general they are designed to be, and danger of promoting attempts to commit fraud by varying or abrogating written contracts by verbal communications which, in contemplation of law, are merged in the former, — it should not be applied except in a- clear case, and the claim of fraud should not be allowed to prevail unless established by clear and satisfactory evidence. In this respect the familiar rule applies that he who alleges fraud in a
In the last case cited the court said, in effect, notwithstanding a mere preponderance of evidence, which, ordinarily, is sufficient upon which to base a finding of fact in favor of the party upon whom the burden of proof rests, not so when to lift that burden fraud must be established. Then the finding ■should not be made unless the jury are satisfied by evidence which is clear, satisfactory, and convincing. A court in submitting the issue of fact to a jury does not perform its duty without making that distinction. In respect to an instruction, as in this case, the court added:
“The instruction given-would correctly enough have defined the jury’s duty upon an ordinary issue of fact; but it was incomplete as a guide in passing upon fraud. . . .”
We should say, in passing, to avoid confusion because of variations in stating the rule referred to, “clear and satisfactory evidence” being used in some instances and “clear, satisfactory, and convincing evidence” in others, it is not understood here that the latter goes any further than the former. That is, to tell the jury, the claim of fraud in order
The case, from the standpoint of the respondent, involved, very plainly, the conditions requiring the rule in Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69, to be considered. On the one side there was a written contract, in plain terms, fixing the rights of the parties. On the other, there was the claim that the writing was not made for the purpose its terms would indicate; that the real contract relating to compensation for doing the work, apparently fixed by the writing, rested in parol, and that the attempt to use the writing for a1 purpose, not within the contemplation of the parties when it was made, was dishonest. The adversaries only, testified on the subject. Each apparently testified as positively to his claim, as the other. Neither seems to have been corroborated by any other witness or circumstance, except appellant had the advantage of the writing. That gave him the benefit of the rule casting upon respondent the burden of satisfying the-' jury by “clear and satisfactory evidence,” or “clear, satisfactory, and convincing evidence” of the truth of his claim. .The rule was peculiarly important, in that the case had to turn solely upon the question of which of the two interested parties testified to the truth. There was no opportunity for conflict consistent with good faith. One or the other must necessarily have told the truth and the other testified wilfully false. The presumption against perjury was in favor of one-
The manner of witnesses while testifying before a jury sometimes is a valuable guide in solving conflicts. That guide, in the very nature of things, an appellate court cannot have the benefit of, hence the rule that the finding of a jury, approved by the trial court, will not be disturbed on appeal unless it appears to be unwarranted in any reasonable view of the evidence, giving due weight in its favor to those circumstances which are legitimate aids to the jury and judge in discovering truth but are not to' the reviewing court.
From the foregoing it will be seen that the rulings on the objections to evidence as to a verbal agreement having been made which was inconsistent with the writing, tending to show that the writing was put forward for a fraudulent purpose, were proper. Was the evidence to prove such purpose sufficient to warrant the jury in finding in favor of the claim of fraud ? That is the serious question.
Looting at the printed record alone, it does not seem that the evidence of respondent was sufficient to outweigh the equally positive, and so far as appears, equally credible, evidence of appellant and the writing besides, so as to establish clearly and satisfactorily, or in other words, clearly, satisfactorily, and convincingly, that appellant’s use of the writing was dishonest. It may possibly be, as we have seen, that circumstances existed which were entitled to weight by the jury, but which we cannot have the benefit of; and which were sufficient, if the jury so thought, to point to the requisite degree of certainty of the truth to justify finding in respondent’s favor. Had the jury been carefully instructed in respect to the matter, it may be that they would not have
Neither counsel for the plaintiff, nor counsel for the defendant, nor the circuit judge, seems to have appreciated the distinction between proving fraud and proving any ordinary fact in issue in a civil case. The judge in the instruction, phrased by himself, informed the jury that the burden was upon plaintiff to establish his claim of fraud to their satisfaction by a fair preponderance of the evidence, instead of making it, plain that he should establish it to such satisfaction by clear and satisfactory evidence.
Instructions given at the request of appellant, so far as they touched the subject at all, were in harmony with the main instruction. The court said to the jury, at the request of counsel for appellant, in effect, that the claim of fraud could not prevail unless proved with a reasonable degree of certainty.
True, counsel for appellant did not except to the instructions given on the subject we have discussed, nor request any different instruction in respect to the matter, but on the contrary, as we have seen, requested and obtained somewhat similar instructions. So appellant is in no position to complain of errors in that respect, but, in the absence of a finding, in effect that the claim of fraud was established by clear and satisfactory evidence, and there is none here, especially without evidence of some convincing evidentiary circumstance stronger than it seems probable there could have been, which could not be spread upon the record, but which must have been before the jury, — it is considered that it is too probable injustice may have been done appellant, to allow the verdict to stand. So it is the opinion of the court, that on the record as it stands, the evidence does not warrant the verdict, giving due weight, reasonably, to the manner of adversaries
In view of the foregoing many questions discussed by counsel are immaterial. The case as it should be tried and submitted to a jury, if submitted at all, is a very simple one.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.
A motion for a rehearing was denied May 24, 1910.
